Bellard v. Homesite Ins. Co.

Full title: LORENA BELLARD v. HOMESITE INSURANCE CO.

Court: United States District Court, Western District of Louisiana

Date published: Sep 29, 2023

2:22-CV-03499 (W.D. La. Sep. 29, 2023)

Opinion

2:22-CV-03499

09-29-2023

LORENA BELLARD v. HOMESITE INSURANCE CO.

KATHLEEN KAY MAGISTRATE JUDGE

JAMES D CAIN, JR. JUDGE

REPORT AND RECOMMENDATION

KATHLEEN KAY MAGISTRATE JUDGE

Before the court is a Motion to Dismiss without Prejudice [doc. 15] filed by plaintiff Lorena Bellard, which has been marked deficient. The motion has been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636.

For the following reasons, it is RECOMMENDED that the Motion to Dismiss [doc. 15] be GRANTED and that this matter be DISMISSED WITHOUT PREJUDICE. In the alternative, it is RECOMMENDED that this matter be DISMISSED WITHOUT PREJUDICE for plaintiff's failure to prosecute and abide by orders of the court.

This suit was filed on plaintiff's behalf by the firm McClenny Moseley & Associates, PLLC (“MMA”). Doc. 1. Plaintiff became a pro se litigant by operation of an order of this court styled “Order Terminating Former MMA Counsel from Proceedings, Designating Plaintiff a Pro Se Litigant, and Other Matters” (the “Termination Order”). Doc. 14. The Termination Order set a September 20, 2023, status conference that plaintiff was ordered to attend in person. The Termination Order additionally cautioned plaintiff that

Should plaintiff fail to appear for this conference without having retained new counsel or without having sought to dismiss this suit by use of the attachment or otherwise, that failure to appear may result in adverse consequences such as a recommendation by the undersigned to the

district court that the case be dismissed for failure of plaintiff to prosecute or abide by court orders.

Id. (emphasis original). The Termination Order also contained the following instruction and reference to the form motion to dismiss:

ADDITIONAL NOTICE TO PLAINTIFF: If you never intended for this lawsuit to be filed on your behalf or, for whatever reason, no longer wish to pursue your lawsuit, please complete the attached form entitled “Motion to Dismiss Without Prejudice.” Please follow the instructions on the form carefully. Unless and until you receive notice that the motion has been granted or if you receive notice that the motion has been denied, your case remains active, and you remain responsible for representing yourself as outlined above. If you are concerned about the consequences of signing this document, we suggest you consult with an attorney.

Doc. 14, att. 1. The completed and witnessed form motion to dismiss is now before the court, but it was marked deficient because one of the signatures is not in blue ink. Doc. 16

The court held the status conference on September 20, 2023, in the Lake Charles Division of the Western District of Louisiana. Doc. 20. Plaintiff did not appear for the status conference as instructed. Id. Plaintiff has contacted chambers by phone to indicate that she wishes the case to be dismissed.

Having reviewed plaintiff's motion, the undersigned finds, and recommends that the district judge find, it a competent expression of plaintiff's wish to no longer prosecute this case against the defendant, despite its deficiency.

Additionally, Rule 1 of the Federal Rules of Civil Procedure, defining the scope and purpose of the rules governing procedure in civil actions and proceedings, instructs us to construe, administer, and employ the rules “to secure the just, speedy, and inexpensive determination of every action and proceeding.” Rule 41(b) of the Federal Rules of Civil Procedure “allows the district court to dismiss an action upon the motion of a defendant, or upon its own motion, for failure to prosecute.” Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1190 (5th Cir. 1992); see also Campbell v. Wilkinson, 988 F.3d 798, 801 (5th Cir. 2021) (discussing Berry). “The power to invoke this sanction is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the District Courts.” Link v. Wabash R. R. Co., 82 S.Ct. 1386, 1388 (1962). Accordingly, IT IS RECOMMENDED that the Motion to Dismiss Without Prejudice [Doc. 15] be GRANTED, and that this matter and all of plaintiff's claims against Homesite Insurance Co. be DISMISSED WITHOUT PREJUDICE.

In the alternative, we further RECOMMEND to the district court that this matter be DISMISSED WITHOUT PREJUDICE for plaintiff's failure to prosecute and abide by the orders of the court.

Under the provisions of 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil Procedure, parties have fourteen (14) days from receipt of this Report and Recommendation to file written objections with the Clerk of Court. A party may respond to another party's objections within fourteen (14) days after being served with a copy thereof. Failure to file written objections to the proposed factual findings and/or the proposed legal conclusions reflected in this Report and Recommendation within fourteen (14) days following the date of receipt shall bar an aggrieved party from attacking either the factual findings or the legal conclusions accepted by the District Court, except upon grounds of plain error. See Douglas v. United Services Automobile Ass'n, 79 F.3d 1415, 1429-30 (5th Cir. 1996).

THUS DONE AND SIGNED.